Hussain v The Director of Public Prosecutions

For the purposes of Road Traffic Act 1988, a breath specimen is valid only where it is provided in a way that enables the analysis and its objective to be satisfactorily achieved. An instrument message such as ambient fail may justify treating readings from that testing cycle as unreliable, particularly where the message occurs twice within minutes. Where no valid pair of breath specimens has been provided, the police may require two further breath specimens. The statutory power is not confined to requiring blood or urine. The court also indicated that, once two reliable specimens have been produced, further breath specimens cannot be demanded merely because an officer mistakenly believes them unreliable.

The claimant appealed by case stated against his conviction at Sheffield Magistrates’ Court for failing, without reasonable excuse, to provide a specimen of breath for analysis contrary to section 7(6) of the Road Traffic Act 1988. At a police station he provided one specimen during each of two testing cycles, but the device displayed ambient fail before a second specimen could be obtained. He was then required to provide two further specimens at another station and refused.

The issues were whether the initial specimens were valid for the purposes of section 11(3), and whether further breath specimens could be required where the device had not produced a reliable indication.

1. Appeal dismissed in substance. The first question was answered by holding that the specimens provided at 02.55 and 03.04 were not valid specimens for the purposes of section 11(3) of the Road Traffic Act 1988.
2. Section 11(3) requires both sufficient cooperation or a specimen enabling the analysis to be carried out and provision in a way enabling the objective of the analysis to be satisfactorily achieved. The question was whether the first specimen in each cycle could be treated as reliable in the context of the complete cycle.
3. The repeated ambient-fail messages were a clear indication that the machine was not operating properly and that the readings obtained during those cycles could not be relied upon. The District Judge was entitled to reject an approach which isolated the early readings and ignored the later malfunction.
4. The court followed the approach in Denny v Director of Public Prosecutions [1990] RTR 417 and Stewart v Director of Public Prosecutions [2003] EWHC 1323 Admin, [2003] RTR 35: two further breath specimens may be required where the first attempted pair did not constitute valid specimens because the analysis was not satisfactorily achieved. The alternative of blood or urine was not exclusive.
5. Jubb v Director of Public Prosecutions [2002] EWHC 2317 Admin departed from that line of authority, but the court noted that Denny and section 11(3) had apparently not been drawn to the judge’s attention. The second stated question was not answered in its abstract form, but in the circumstances the officer was entitled to require two further breath specimens. Refusal constituted the offence of which the claimant was convicted.

• High Court (Administrative Court): The Divisional Court considered an appeal by case stated from the conviction and findings of District Judge Hadfield sitting at Sheffield Magistrates’ Court on 11 December 2006. The court upheld the substance of the conviction and answered the first question against the claimant.